Citation Nr: 0821163
Decision Date: 06/27/08 Archive Date: 07/02/08
DOCKET NO. 06-07 718 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Denver,
Colorado
THE ISSUE
Entitlement to service connection for a bipolar disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant and daughter
ATTORNEY FOR THE BOARD
S. Grabia, Counsel
INTRODUCTION
The veteran had active service from January 1957 to December
1959.
This matter is before the Board of Veterans' Appeals (Board)
on appeal from a February 2005 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Denver, Colorado.
In April 2008, the veteran and his daughter testified at a
hearing before the undersigned at the RO.
FINDING OF FACT
A bipolar disorder was not present in service; was not
exhibited within one year of service discharge; and the
preponderance of the evidence is against the finding that the
veteran's current bipolar disorder is etiologically related
to his active service.
CONCLUSION OF LAW
A bipolar disorder was not incurred in or aggravated by
active service and may not be presumed to have been incurred
therein. 38 U.S.C.A. §§ 1131, 1112, 1113, 5103, 5103A, 5107
(West 2002 & Supp. 2008); 38 C.F.R. §§ 3.102, 3.159, 3.303,
3.307, 3.309 (2007).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The requirements of the Veterans Claims Assistance Act of
2000 (VCAA) have been met. There is no issue as to providing
an appropriate application form or completeness of the
application. VA notified the appellant in February 2003 and
March 2006 correspondence, as well as in the January 2006
statement of the case,
April 2006, May 2007, and November 2007 supplemental
statements of the case of the information and evidence needed
to substantiate and complete a claim, to include notice of
what part of that evidence is to be provided by the appellant
and notice of what part VA will attempt to obtain. VA has
fulfilled its duty to assist the appellant in obtaining
identified and available evidence needed to substantiate a
claim. VA informed the appellant of the need to submit all
pertinent evidence in his possession. While the appellant
did not receive full notice prior to the initial decision,
after pertinent notice was provided the appellant was
afforded a meaningful opportunity to participate in the
adjudication of the claim. The appellant was provided the
opportunity to present pertinent evidence and testimony. In
sum, there is no evidence of any VA error in notifying or
assisting the appellant that reasonably affects the fairness
of this adjudication. The evidence discussed above rebuts
any suggestion that VA's notice prejudiced the appellant.
Background
Initially the Board notes that except for a February 1959
summary court-martial order, the veteran's service medical
records are not available. In a June 1977 letter the National
Personnel Records Center (NPRC) indicated that the records
were apparently destroyed in the fire at that records storage
facility in 1973. The claims file contains RO letters noting
formal findings of unavailability of service medical record
dated February 2003, and June and July 2007. The record also
notes that requests for records from the veteran went
unanswered. The Board is satisfied that the RO has taken all
necessary steps to secure service medical records and, given
the responses from the NPRC, that additional efforts would be
futile. 38 U.S.C.A. § 5103A(b). In a case such as this, where
service medical records are unavailable, the Board is mindful
of the heightened obligation to explain its findings and
conclusions and to consider carefully the benefit-of-the-
doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991);
Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992).
The veteran was first diagnosed with a manic depressive
disorder (bipolar disorder) in 1981 at the VAMC.
The file contains extensive physical and mental health
treatment records including prison, Social Security
Administration (SSA), private, and VAMC records, referencing
treatment for alcohol abuse and psychiatric illness,
including manic depression, bipolar disorder and post
traumatic stress disorder. None of the records establish the
presence of psychiatric illness during the veteran's period
of service.
Post service, the veteran was imprisoned in the Pontiac,
Illinois State Penitentiary in June 1961. May 1962 prison
medical records noted no mental illness symptoms. He was
subsequently, imprisoned in San Quentin from 1963 to 1964; a
records request was unsuccessful.
April and October 1971 Colorado State Hospital Alcohol
Treatment Center discharge summaries noted that the veteran
had been confined for court ordered treatment for alcohol
abuse. It was noted that he had been drinking since age 9
and was a problem drinker since age 15. He also admitted to
experimenting with amphetamines and LSD. He had experienced
numerous blackouts; had been arrested several times for
drunkenness, and 5 DUIs; and had 2 prison sentences for
accessory to armed robbery and possession of stolen goods.
The diagnoses was alcoholism, habitual, excessive drinking;
alcohol addiction; and, antisocial personality.
VA records show that the veteran was hospitalized for a 3 day
period in August and September 1976 for depressive neurosis.
It was noted that he had no prior history of psychiatric
hospitalization. Depression was attributed to family
problems and he was reported to have quickly improved from
his apparent situational reaction.
A July 1979 Social Security Administration (SSA) record
included a dictated medical report from Robert W. Marshall,
M.D., at the Spanish Peaks Mental Health Center who noted
that this was his first session with the veteran, who had
been had treated there since May 1977. He noted the
veteran's very fragmented early family experience, including
the murder of his mother by his step father who then
committed suicide; traveling during his early years with what
amounted to a migrant farm-working household; and heavy abuse
of alcohol. Starting at the time of military service at age
17 he began getting into difficulty with minor violations of
military discipline and had 3 court-martials because of
alcohol related offenses. Since service he has been utterly
unable to hold gainful employment in a steady or predictable
fashion. Until age 31 he was in one problem with aberrant
behavior after another, all alcohol related. He spent time
in prison and jails because of drunk and disorderly behavior,
or DUIs. He had been hospitalized on a number of occasions
because of his drinking pattern. He claimed to have
maintained complete sobriety and not abused any drugs since
1971. He felt unable to hold gainful employment due to a
history of severe recurrent depression all associated with
his fragmented life and severe back pain disability. The
examiner opined that given his past history and if what is
reflected in the available record was fairly accurate:
He has made a remarkable recovery from
what seems to be a very severe impulse
disorder or frank anti-social personality
difficulty.
A November 1982 SSA record contains a telephone statement
from a VA physician which notes that the diagnosis was manic
depression, mild to moderate in severity.
A December 1982 Social Security Administration (SSA)
determination awarded the veteran disability benefits from
February 1981 for arthritis, emphysema, and manic depression.
It was stated that he had a long history of mental illness
with depression.
A July 2003 private medical record from Steven D. Martin,
M.D., noted that he had been treating the veteran for 12
years with lithium which controlled his aggression and he had
no relapse to alcoholism. Dr. Martin noted the veteran's
chaotic behavior associated with pressurized behavior and
substance abuse and stated that in service he had been court-
martialed 3 times for disruptive behavior, which was not
treated or diagnosed as a problem that could have been
treated in service. He was released and continued with his
chaotic behavior exacerbated with substance abuse and ending
up incarcerated on multiple occasions and basically on
disability because of chronic back and psychiatric
disability. Dr. Martin opined that:
It is my opinion that if [the veteran]
had been treated as an enlisted
serviceman his present disability would
be much less. There were efforts to
treat his substance abuse while in the
service but his treatment never proceeded
to appropriately manage his bipolar
disorder.
The diagnosis was bipolar disorder-stable on lithium alone.
The veteran had managed for years with the support of AA and
psychopharmacology. He added that, "This is a chronic
illness that he has had since adolescence."
In October 2003, Dr. Martin essentially repeated his July
2003 report adding that the veteran had struggled with his
disability since June 1958, 18 months after service
enlistment. The diagnosis was modified to bipolar disorder-
stable; and, alcohol dependency in remission. A GAF of 50
was assigned.
In March 2006 the veteran's brother wrote about his
observation of the veteran during the 1959 to 1962 timeframe.
He stated his recollection that the veteran displayed a high
degree of antisocial behavior, that drugs and alcohol played
a large role in his life, and that he was always getting into
trouble with the law. Eventually he was sent to prison. The
brother stated that "everyone knew that [the veteran] needed
help, but no one knew how to help him..."
An April 2007 letter from the veteran's VAMC clinical
therapist and cosigned by a staff psychiatrist noted that the
veteran was currently being treated for bipolar disorder. It
was opined that it appeared likely due to the severity of his
symptoms, his history for excessive drinking and disregard
for rules while in the military were secondary to the
emergence of his bipolar disorder.
Analysis
Service connection will be granted if it is shown that a
veteran has a disability resulting from an injury or disease
contracted in the line of duty, or for aggravation of a
preexisting injury or disease contracted in the line of duty
in the active military, naval or air service. 38 U.S.C.A. §
1131; 38 C.F.R. § 3.303. That an injury incurred in service
alone is not enough. There must be chronic disability
resulting from that injury. If there is no showing of a
resulting chronic condition during service, then a showing of
continuity of symptomatology after service is required to
support a finding of chronicity. 38 C.F.R. § 3.303(b).
For certain chronic disorders, including psychoses, service
connection may be granted if the disease becomes manifest to
a compensable degree within one year following separation
from service. 38 U.S.C.A. §§ 1101, 1131, 1112, 1113, 1137;
38 C.F.R. §§ 3.307, 3.309. While the disease need not be
diagnosed within the presumptive period, it must be shown, by
acceptable lay or medical evidence, that there were
characteristic manifestations of the disease to the required
degree during that time. Id.
The veteran has contended that service connection should be
granted for a bipolar disorder. He claims, and has submitted
supporting statements from medical care providers, that the
erratic behavior, excessive drinking and disregard for rules
he exhibited during military service and thereafter stemmed
from bipolar disorder present at that time, albeit
undiagnosed.
Although the evidence shows that the veteran currently has a
bipolar disorder, and in fact has a long history of
psychiatric illness, the preponderance of the evidence does
not show that his bipolar disability had its onset during
service or was due to any incident therein. In this regard,
the Board has given careful consideration to the opinions
expressed by Dr. Martin and the VA medical care providers,
who purport to link the veteran's aberrant behavior during
service to undiagnosed mental illness.
The United States Court of Appeals for Veterans Claims has
provided guidance for weighing medical evidence. The Court
has held, for example, that a post-service reference to
injuries sustained in service, without a review of service
medical records, is not competent medical evidence. Grover
v. West, 12 Vet. App. 109, 112 (1999). Further, a bare
conclusion, even one reached by a health care professional,
is not probative without a factual predicate in the record.
Miller v. West, 11 Vet. App. 345, 348 (1998). A bare
transcription of lay history, unenhanced by additional
comment by the transcriber, does not become competent medical
evidence merely because the transcriber is a health care
professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995).
Of course, it goes without saying that every medical opinion
must be within the scope of expertise of the medical
professional who proffered it, Layno v. Brown, 6 Vet. App.
465 (1994), and a medical opinion based on speculation,
without supporting clinical data or other rationale, does not
provide the required degree of medical certainty. Bloom v.
West, 12 Vet. App. 185, 187 (1999). Also, a medical opinion
is inadequate when it is unsupported by clinical evidence.
Black v. Brown, 5 Vet. App. 177, 180 (1995). Finally, a
medical opinion based on an inaccurate factual premise is not
probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In
sum, the weight to be accorded the various items of medical
evidence in this case must be determined by the quality of
the evidence and not necessarily by its quantity or source.
Dr. Martin concedes that the veteran's disorder existed since
adolescence but may have been less severe if treated in
service. The VAMC clinicians opined that the veteran's
excessive drinking and disregard for rules in service were
secondary to the emergence of his bipolar disorder. These
opinions, entered decades after the veteran's military
service were obviously based primarily on his self reported
history, as there are no contemporaneously prepared records
which would tend to establish a basis for same. Medical
records dated closer to service do not link psychiatric
symptoms to military service, and in fact make it clear that
the veteran's behavior problems were due to alcohol abuse and
a personality disorder, neither of which is considered a
disability for the purposes of service connected
compensation, with no mention of an underlying psychiatric
disorder. See 38 C.F.R. §§ 3.301, 3.303 (2007).
It is significant that, according to the medical histories
recorded during the decades following service, the veteran
exhibited erratic behavior and had a serious alcohol problem
and possible psychiatric abnormality dating from his
adolescence, perhaps the result of his unfortunate childhood.
This behavior apparently continued through service although
no records of this period exists. The first post service
reference to his mental condition is in a May 1962 Pontiac,
Illinois State Penitentiary prison medical record, almost 21/2
years after service, which found no mental illness symptoms.
April and October 1971 Colorado State Hospital Alcohol
Treatment Center records note diagnoses of alcoholism,
habitual, excessive drinking; alcohol addiction; and
antisocial personality. Not until 1976, during a brief VA
hospitalization, was an acquired psychiatric disorder
diagnosed. A July 1979 medical report from Dr. Marshall,
noted that the veteran had made a remarkable recovery from
what seems to be a very severe impulse disorder or frank
anti-social personality difficulty.
Thus the Board accords little probative weight to these
opinions, which are speculative. A speculative relationship
is not enough to support a claim. See Obert v. Brown, 5 Vet.
App. 30 (1993). See also Tirpak v. Derwinski, 2 Vet. App.
609, 611 (1992). Therefore, given that these opinion were
based on the veteran's self-reported history which is not
supported by the evidence of record, the Board finds that
such opinions are of little probative value as to the issue.
See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997);
Hayes v. Brown, 5 Vet. App. 60, 69 (1993)("[i]t is the
responsibility of the BVA . . . to assess the credibility and
weight to be given the evidence").
Without any competent evidence of a nexus between the
veteran's bipolar disorder and service, service connection is
not warranted. The contentions of the veteran to the effect
that his current bipolar disorder is related to service
cannot by themselves establish that this is so. He is a
layperson and, as such, is not competent in matters requiring
specialized medical knowledge, skill, training, or education.
Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
The doctrine of resolving a reasonable doubt in the veteran's
favor does not apply as the preponderance of the evidence is
against the claim.
(CONTINUED ON NEXT PAGE)
ORDER
Entitlement to service connection for bipolar disorder is
denied.
____________________________________________
N. R. ROBIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs